Four recent Queensland decisions highlight the importance of retaining medico-legal specialists who have the benefit of current surgical experience and specialisation over those that do not. 

On 30 June 2015, in Farnham v Pruden & RACQ Insurance Limited [2015] QDC 141, the Mackay District Court considered the competing opinions of two orthopaedic surgeons, Dr Williams and Dr Pentis, for a cervical spine injury.  Ultimately, the court preferred the evidence of Dr Williams on the following basis:

“if only because he has continued to be in clinical practice (in contrast to Dr Pentis’ last engagement in at least 1994), has had regard to the AMA5 Guide (used by his peers) and used an inclinometer (to measure range of motion)(noting that Dr Pentis did agree that the use of the scale as Dr Williams did would lead to the assessment Dr Williams had made).”

Similarly, on 17 September 2014, the Brisbane District Court in Burford v RSL (Queensland) War Veterans’ Homes Limited [2014] QDC 203 accepted the evidence of Drs Williams and McPhee over that of Dr Pentis for a spinal injury given that they:

“have the benefit of current, or recent surgical practices and who by virtue of their respective leadership positions could reasonably be expected to be abreast of current medical knowledge.”

At the time, Dr Williams was head of spinal trauma services within the Orthopaedics Unit at the Princess Alexandra Hospital and Dr McPhee had practiced exclusively in spinal surgery for many years until he retired from surgery in 2013 and for the past 14 years had been the head of the Department of Orthopaedics at the University of Queensland Medical School.

The court also noted that Dr Williams’ evidence was marked by careful attention to detail in contrast to the opinion of Dr Pentis which “suffered from factual errors as to the first emergence of pain and symptoms” which “infected his opinion and therefore diminished the weight of it”.

On 19 June 2015, in Stark v Toll North Pty Ltd [2015] QDC 156, the Maroochydore District Court accepted the evidence of Dr Saxby over that of Dr Wallace in relation to an ankle injury, on the basis of speculation in Dr Wallace’s report. The court found that “in the absence of any evidence, on the stress x-ray, of such instability, not only does Dr Wallace speculate that there is nonetheless such instability, but then further speculates that it would be moderate”.  The court also preferred Dr Saxby’s opinion as a specialist in disorders of the foot and ankle, in contrast to Dr Wallace.

On 19 June 2015, in Lewin v Gould & Anor [2015] QCA 107, the Queensland Court of Appeal upheld the decision of the Brisbane District Court in relation to the acceptance of the opinion of Dr Journeaux over that of Dr Pentis for a child injured in a car accident.  The Court of Appeal accepted that there was a solid evidentiary foundation for the primary judge preferring Dr Journeaux’s evidence on the basis that Dr Pentis had relied on some incorrect assumptions about progress and treatment and the claimant’s reactions to pain and the fact that Dr Journeaux had “more relevant expertise as a paediatric trauma surgeon”.  The trial judge noted that Dr Pentis had not practised in orthopaedics since the early 1990’s and had no particular specialty in paediatric orthopaedics when he did practise.  By contrast, the court noted that Dr Journeaux was an experienced orthopaedic surgeon in both public and private practice working at both the adult and children’s hospitals.

Important points to remember when engaging a medico-legal expert

  1. Ensure the expert has relevant experience in the required field.  In particular, whether the expert has a current or recent surgical practice and, ideally, a specialty in the required area (e.g. paediatrics for child claimants or a spinal surgeon for a spinal injury).
  2. Ensure that the expert is briefed with all relevant medical records and documents.
  3. Review the report from the expert when received to ensure that it does not contain factual inaccuracies which may cause a court to prefer the evidence of another expert.
  4. Ensure the report complies with the expert evidence rules and assesses the injury in accordance with relevant legislative requirements.

Daniel McCormack